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Medical Records

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Dan Manville
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Paul_Treloar_AgeUK - 05 April 2019 12:36 PM
Elliot Kent - 05 April 2019 12:29 PM

“Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes”

Well plainly it has come from the President and ought to be followed, but I am afraid I do not understand that proposition.

 

Seconded, that’s an absurd statement to make.

Swap “can” for “need” and suddenly it all makes sense.

     
Elliot Kent
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Dan Manville - 05 April 2019 12:38 PM
Paul_Treloar_AgeUK - 05 April 2019 12:36 PM
Elliot Kent - 05 April 2019 12:29 PM

“Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes”

Well plainly it has come from the President and ought to be followed, but I am afraid I do not understand that proposition.

 

Seconded, that’s an absurd statement to make.

Swap “can” for “need” and suddenly it all makes sense.

Well quite.

But there is a rather critical difference between “HMCTS cannot do this” and “HMCTS can do this but don’t want to”.

     
past caring
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With respect to the Chamber President, I think there’s scope for some confusion with that letter…..

Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes.

As others have said, what does this mean? HMCTS is legally prevented by GDPR from doing so? Or can no longer justify the cost?

But it gets worse…...

Where the Tribunal feels that GP notes are essential to the fair determination of an appeal and the only way to rectify that is to allow a further opportunity for them to be produced, that should be done, rather than directing their production.

The obvious reading of that is the appellant has already had one such opportunity which they have failed to take advantage of. But appeal acknowledgement letters (GAPS DL 7),  the letter about the hearing (GAPS DL 1) and hearing notices (GAPS 804/97) do not currently inform the appellant either that GDPR allows them to obtain their medical records free of charge or that doing so might assist in their appeal. And for any such information to be useful, it would also need to inform the appellant of the dates between which they should request records, that this is not obligatory and the fact that they might wish to redact certain sections.

How many judges read and are familiar with the bumph that is sent out to appellants? Not many I suspect. That sentence risks some judges ‘taking a view’ of appellants who have not requested their records in advance of the hearing.

Can we expect an update in the information that is sent to appellants?

The tribunal in the opening post also appears to have been confused by the letter - it issued a direction when the letter said it should not - and then quoted the letter word for word. And I would suggest that whilst the use of the words, “If you are willing…” and “If you decide….” indicates to the appellant that they have a choice in the matter, the sentence “You can show this Directions notice to your GP to explain what the Tribunal has decided.” and the phrase “...you must ask your GP practice for them urgently and you must send them to HMCTS within 28 days” will make many appellants think otherwise.

     
John Birks
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It’s an Equality of Arms issue IMO - The tribunal has to strike a fair balance between the opportunities afforded the parties involved in that each party should be able to call for evidence?

If HMCTS are making the request and i was the SSWP I’d argue they’re favouring one side in the proceedings.

     
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John Birks - 05 April 2019 01:20 PM

It’s an Equality of Arms issue IMO - The tribunal has to strike a fair balance between the opportunities afforded the parties involved in that each party should be able to call for evidence?

If HMCTS are making the request and i was the SSWP I’d argue they’re favouring one side in the proceedings.

If such an argument had any substance to it, it’s one that has been available to the SoS since God was in short trousers. But it’s not one I’ve ever encountered nor heard second hand of anyone coming up against.

The issue of equality of arms and fair balance in calling for evidence, has to be seen against the logically and legally prior background of whether there is an equal understanding between the parties in respect of the relevant law and conditions of entitlement. It is, surely, only where one has a proper understanding of these things that it even begins to be possible to produce evidence relevant to the issues the tribunal has to decide?

One of the parties to the appeal has made the law and set the conditions of entitlement - it is their own legislation.

One of the parties to the appeal has set conditions of entitlement that require the claimant to undergo a medical examination. That same party will also have issued the guidance to and been responsible for the training of the medical professionals who will carry out that examination.

One of the parties will automatically have been provided with the report of that examination. The other will either have to ask for it or make an appeal to have it provided.

One of the parties to the appeal has, over the years, via its cuts to local authority and central government funding and its cuts to Legal Aid, brought about a situation where the other party will find it extremely difficult to find free, expert advice should they need it. This will make it more difficult to complete application forms appropriately if they do not understand the conditions of entitlement and make it much more difficult to set out any case that they have. They will find it even harder to find expert representation at the tribunal that will decide the appeal.

Need I go on?

     
ClairemHodgson
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Paul_Treloar_AgeUK - 05 April 2019 12:36 PM
Elliot Kent - 05 April 2019 12:29 PM

“Following the advent of General Data Protection Regulations (GDPR), HMCTS can no longer pay for medical notes”

Well plainly it has come from the President and ought to be followed, but I am afraid I do not understand that proposition.

 

Seconded, that’s an absurd statement to make.

indeed.

if he’d said “no longer has to pay for medical notes”, that would have been correct

     
John Birks
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past caring - 05 April 2019 02:16 PM
John Birks - 05 April 2019 01:20 PM

It’s an Equality of Arms issue IMO - The tribunal has to strike a fair balance between the opportunities afforded the parties involved in that each party should be able to call for evidence?

If HMCTS are making the request and i was the SSWP I’d argue they’re favouring one side in the proceedings.

If such an argument had any substance to it, it’s one that has been available to the SoS since God was in short trousers. But it’s not one I’ve ever encountered nor heard second hand of anyone coming up against.

The issue of equality of arms and fair balance in calling for evidence, has to be seen against the logically and legally prior background of whether there is an equal understanding between the parties in respect of the relevant law and conditions of entitlement. It is, surely, only where one has a proper understanding of these things that it even begins to be possible to produce evidence relevant to the issues the tribunal has to decide?

One of the parties to the appeal has made the law and set the conditions of entitlement - it is their own legislation.

One of the parties to the appeal has set conditions of entitlement that require the claimant to undergo a medical examination. That same party will also have issued the guidance to and been responsible for the training of the medical professionals who will carry out that examination.

One of the parties will automatically have been provided with the report of that examination. The other will either have to ask for it or make an appeal to have it provided.

One of the parties to the appeal has, over the years, via its cuts to local authority and central government funding and its cuts to Legal Aid, brought about a situation where the other party will find it extremely difficult to find free, expert advice should they need it. This will make it more difficult to complete application forms appropriately if they do not understand the conditions of entitlement and make it much more difficult to set out any case that they have. They will find it even harder to find expert representation at the tribunal that will decide the appeal.

Need I go on?

You haven’t covered the [now] freely available GP notes.

     
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*bangs head on desk*

     
ClairemHodgson
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so who expected this lengthy debate from OP’s original post!

my overall view is

1. if there’s enough already by way of evidence to not need the records, then don’t get them necessarily.  but BE SURE
2. but if there isn’t - there may only be the HCP report! - get them
because
3. if the records confirm what your client says, it seriously undermines the HCP.  if they don’t confirm what your client says, you tell your client that, end of.
4. we may sensibly think that a tribunal has enough, but we can also sensibly form a view (based on experience/case reports/knowledge of local tribunals/hcp report/dwp submissions) that in fact there’s a chance they won’t “get the point”.

     
DWRS
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This idea that the client can have their records for ‘free’ ignores a couple of pretty obvious points:

Even if the GP makes no charge, this still assumes that, a) there’s no cost involved to the client in getting to their GP surgery, and b) there’s no cost to the client in posting their records to the Tribunal. These costs are potentially coming out of an income of £73.10 a week.

The BMA guidance provides that: , patients must be given access to their
medical records free of charge, including when a patient authorises access by a third
party such as a solicitor. Or presumably, a Tribunal. So HMCTS have shifted the onus of obtaining information that they also could get for free onto the Appellant, who for various reasons may have significant barriers, cost or otherwise, in obtaining them.

https://www.bma.org.uk/advice/employment/ethics/confidentiality-and-health-records/gps-as-data-controllers

 

     
Mr Finch
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John Birks - 05 April 2019 01:20 PM

It’s an Equality of Arms issue IMO - The tribunal has to strike a fair balance between the opportunities afforded the parties involved in that each party should be able to call for evidence?

If HMCTS are making the request and i was the SSWP I’d argue they’re favouring one side in the proceedings.

This presumes that the full medical notes support the appellant’s case - which surely in itself raises other questions about the SSWP’s position?

     
ClairemHodgson
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Mr Finch - 11 April 2019 10:21 AM

This presumes that the full medical notes support the appellant’s case - which surely in itself raises other questions about the SSWP’s position?

dunno about the SSWP, but certainly from my perspective ii would want to know whether the client’s records support, or not support, their case before anyone else does!

     
CHAC Adviser
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I must admit with regards to medical records I just always request them myself (after checking that the client is happy for me to!) since they’re free now under GDPR. My experience is that panels in this area are keen to have the records so by requesting and then submitting them it avoids adjournments and by doing it myself I can check to see if there are any landmines to be navigated around within! Mostly they add very little to the hearing it has to be said and it’s my submission and the appellants evidence that gets it over the line. But sometimes there’s something useful in there or something that needs to be carefully explained and contextualised.

I think the position of HMCTS for client that they know are represented isn’t unreasonable. The effort of me sending a letter to the GP surgery, then either getting them in the post or arranging someone to collect, and then photocopy and post off to HMCTS is fairly minimal. But that’s not necessarily true of clients who are not represented. I can think of several of my own who would probably have found it quite a hardship to have to arrange all of the above. Potentially even impossible. Which means that it’s certainly alarming that they may make an negative inference of the appellant doesn’t provide them!

     
ClairemHodgson
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CHAC Adviser - 11 April 2019 01:00 PM

But that’s not necessarily true of clients who are not represented. I can think of several of my own who would probably have found it quite a hardship to have to arrange all of the above. Potentially even impossible.

pasrticularly if they have one of the GP practices which hasn’t yet caught up with GDPR, still wants to charge, insists on fancy forms, etc

had one recently where the practice told the man they wanted 50p/sheet to provide copies.

     
NAI
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It has started. Direction extract issued upon adjournment last week is attached. The medical records might be free but sending them to HMCTS could be expensive.

     

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